In this comment, Antoine Duval from the Asser Institute lays out a set of key orientations for a comprehensive reform of the world anti-doping system in the wake of the Russian doping scandal. In a nutshell, it’s time to focus WADA’s resources on compliance with the World Anti-Doping Code.

The Russian doping scandal has undoubtedly broken the scant trust athletes may have had in the fair working of the World Anti-Doping System. Depending on where an athlete trains or competes, he or she will not be treated in a similar manner by anti-doping authorities because local factors and interests will come into play. These divergences must be addressed urgently.

There is no need to throw out the baby with the bathwater, however. The World Anti-Doping Agency (WADA) should stay in place, but it must change in order to do so. If not, the whole anti-doping edifice built around it threatens to unravel. Some might favour a permissive doping environment, but a majority still fears for the health of athletes and their equality on the playing field. To this end, this comment suggests five, relatively broad, directions for a reform of WADA’s anti-doping system and a number of concrete policy proposals.

Compliance, Compliance, Compliance

WADA’s failure, reflected in the Russian doping scandal, is mainly on the compliance front. WADA has devised a set of uniform anti-doping rules, the World Anti-Doping Code (WADC) and its adjacent Standards, applying (in theory at least) across the world. Yet, until recently, it lacked the means (and maybe the willingness) to properly check whether the WADC signatories also properly implemented those rules and standards. This was (and still is) a massive blind spot in the World Anti-Doping System, one that jeopardizes the whole ambition to develop common rules and practices to regulate doping at a global level.

From now on, WADA’s focus should be primarily on ensuring compliance with the WADC. In this regard, it is suggested that:

 WADA allocates a substantial share of its budget to compliance activities;

 WADA recruits a solid in-house team of specialised investigators;[1]

 WADA commits to a yearly report on compliance for each individual signatory;

 Based on this report WADA should order a reasonable number of comprehensive audits of

non-compliant organisations.

‘Putting your money where your mouth is’

If it is to be more than a ‘Paper Tiger’, WADA needs to be properly funded, in particular to match the scope of its massive compliance tasks. This necessity has been very much emphasised in the recommendations of the McLaren Report and in recent discussions. The paralysing question is then, who is supposed to pay for this? Everybody seems to agree that more resources are needed to properly run the World Anti-Doping System, but nobody is willing to pay for this.

In fact, the answer is not straightforward as it is extremely difficult to have a proper overview of who (Sports Governing Bodies (SGBs) or national States) is currently financing what in the world anti-doping system. Undoubtedly, the International Olympic Committee (IOC) and the States share equally the burden of financing WADA, but it is way less clear on whose shoulders the financial burden for national anti-doping testing predominantly lies. More research will be needed to allocate fairly the financial effort linked to the needed reforms.

With this in mind it is proposed that:

 The States and the IOC commit to doubling their contributions to WADA’s budget;

 The SGBs commit to financing 50% of the costs incurred by National Anti-Doping Agencies

(NADOs) and laboratories for collecting and analysing samples;

 WADA and UNESCO order a joint report on the financing of world anti-doping system.

Transparency and responsiveness

Sports governance in general is plagued with a regrettable transparency and accountability deficit and WADA is not immune to it. Leaks should not be the main information source on doping for the general public, instead WADA must be a beacon of transparency and provide a well-structured and accessible database/clearinghouse where all the key information (decisions, compliance reports etc.) on the World Anti-Doping System can be found. Moreover, WADA needs to ensure that executive members abide by personal standards of independence and impartiality and are reflective of the broader set of affected actors.

WADA should for example:

 publish all individual compliance reports/audits on a yearly basis;

 publish all anti-doping decisions at national and international level in a publicly available

repository;

 commit to systematically publish scientific reports even when they are not amenable to WADA;[2]

 ensure that noncompliance decisions are taken by a fully independent body;

 ensure a greater voting power inside its executive bodies for the main affected party: the

athletes.

Anti-doping is a team sport

The anti-doping fight should be less of a top-down exercise and more of a bottom-up collaboration. If the Russian scandal has proven one thing, it is that the press and whistle- blowers are often more potent in uncovering systematic doping than WADA, NADOs and the SGBs. This should lead WADA to devise a leniency system providing true incentives for whistle-blowers to come forward. In this regard, the treatment of Ms. Stepanova by the IOC, which refused for the wrong reasons to let her participate in the Rio Games, is disgraceful and counter-productive.

Finally, one key element that facilitated the Russian doping system is that the World Anti- Doping System takes a very different reality in each national jurisdiction. This is so because the key organisations in charge of the implementation of the WADC are the NADOs and in some countries local laboratories.[3] To address this problem, one would need to centralise and transnationalise the testing process and the analysis of samples. [4] This would imply that WADA (or regional peers) would take over a huge amount of the work currently done by national bodies. This goal is probably worthy of consideration in the medium/long term, yet in the near future it is extremely unlikely that both the States and the SGBs would be ready to confer the necessary means to WADA (or a number of regional equivalents) to become the sole transnational enforcer(s) of the WADC.

WADA and the World Anti-Doping System are at a crossroad. The Russian doping scandal has exposed the systematic weaknesses of this global regulatory regime. While it is not realist for WADA to be able to fully control the entire anti-doping process, from the test to the sanction, it should be WADA’s aim to warrantee a floor of common standards and shared practices. I believe that the reforms and orientations proposed in this piece are a feasible step in that direction, one that does not ignore the inherent difficulties of regulating uniformly anti-doping in an extremely complex transnational legal and political environment.

This text is an abbreviated (and updated) version of an ASSER Policy Brief (available in full here) published on 1 September. The brief analysed the failures of the World Anti-Doping System unveiled by the Russian Doping Scandal and offered five broad directions and numerous concrete proposals to reform the World Anti-Doping System. Since then, public debates have raged over the future of the World Anti-Doping Agency (see here, here and here) and a recent ‘multistakeholder think tank’ has put concrete (and similar) reforms on the table. This version focuses on (and refines) the five reform orientations and the concrete proposals advanced in the Brief.

References:

[1] This would imply a substantial boost of WADA’s human resources, as a reminder in 2015 (latest annual report available) WADA had only 81 employees (up from 78 in 2014).

[2] WADA allegedly tried to block the publication of the controversial research results it had funded in 2013, see New York Times, Antidoping Agency Delays Publication of Research, 22 August 2013.

[3] WADA’s latest Anti-Doping Testing Figures Report indicates that in 2014 NADOs conducted 66% of the tests and IFs only 14%. The share of NADOs is even higher if one considers only the more costly (and efficient) out-of-competition tests.

[4] In essence this is what the Olympic Summit aimed at in June 2016, when it requested: “[…]to make the entire anti-doping system independent from sports organisations.” Declaration of the Olympic Summit, 21 June 2016. A similar call was issued on 30 August 2016 by 17 NADO at a special summit in Copenhagen.